IN THE CASE OF:	  

		BOARD DATE:	  18 August 2009

		DOCKET NUMBER:  AR20090004629 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, correction of his records to show he has sufficient qualifying service to meet eligibility requirements for nonregular retired pay at age 60 (Reserve retirement).

2.  The applicant states "the lack of proper documentation by various troop program units that did not expose or show the actual time that was served."  He states that he was not credited with service during the period 12 May 1974 to 27 September 1979 even though he was assigned to the 402d Personnel Service Company during this time.

3.  The applicant provides an Army Reserve Personnel Center (ARPC) Form 249-2-E (Chronological Statement of Retirement Points), dated 7 November 2007; a DD Form 2656 (Data for Payment of Retired Personnel); a DD Form 108 (Application for Retired Pay Benefits); a copy of his DA Form 20 (Enlisted Qualification Record); a copy of his DA Form 2-1 (Personnel Qualification Record); six DD Forms 214 (Armed Forces of the United States Reports of Transfer or Discharge/Reports of Separation from Active Duty); two DD Forms 215 (Corrections to the DD Form 214); a National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service); an NGB Form 55 (Honorable Discharge); Department of the Army, Headquarters, Fifth United States Army, Letter Orders Number 08-1121, dated 5 August 1975; two DA Forms 1380 (Records of Individual Performance of Reserve Duty Training); training certificates; various evaluations; two DFAS Forms 702 (Defense Finance and Accounting Service Military Leave and Earnings Statements); permanent change of station orders; temporary duty orders; orders reassigning him to the Retired Reserve; and other miscellaneous documents in support of this application. 

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  Records indicate the applicant was born on 9 March 1947.  His available military records show he enlisted in the Army National Guard (ARNG) on 1 March 1964.  He was awarded the military occupational specialty of supply clerk.

3.  The applicant's records show he served in the U. S. Army Reserve (USAR) from 1 March 1965 to 1 April 1965 and the Regular Army from 2 April 1965 through 14 May 1974 when he was released from active duty and transferred to the 402nd Personnel Service Company in the USAR.  His DA Form 20 shows he attended 14 days of annual training in June and July of 1974.  Headquarters, Fifth United States Army, Letter Orders Number 08-1121, dated 5 August 1975, show the applicant was discharged from the USAR (Ready), effective 5 August 1975, while assigned to the 402d Personnel Service Company.  He had been promoted to pay grade E-6.

4.  The applicant's records show he enlisted in the Army National Guard (ARNG) on 28 September 1979 and he was discharged from the ARNG and as a Reserve of the United States Army on 27 September 1981 while in the inactive ARNG.

5.  The applicant's records show he was in the USAR from 28 September 1981 to 7 August 1999 until he was reassigned to the Retired Reserve.

6.  The applicant's records contain a DD Form 108 and DD Form 2656, dated 23 October 2007, which indicate he applied for Reserve retired pay on this date. 

7.  The applicant's records contain a letter from the U.S. Army Human Resources Command (HRC St. Louis), Transition and Separations Branch, dated 
7 November 2007, in response to his application for retired pay informing him that he did not have 20 qualifying years of service for retired pay at age 60.  The letter indicated that an audit of the applicant's military records showed he only had 18 years, 2 months, and 14 days of qualifying service for retired pay at age 60.  HRC officials indicated that the applicant was ineligible to receive retired pay and his only recourse was to apply to the ABCMR for a review his case.  An ARPC Form 249-2-E shows the applicant was credited with completing 18 years, 2 months, and 14 days of qualifying service for retired pay at age 60.  This document shows several years where the applicant earned only 15 membership points and other years where he earned less than the minimum 50 points required for a qualifying "good" year for retirement purposes.

8.  Army Regulation 140-185 prescribes the types of training and activities for which retirement points are authorized and the procedures for recording retirement point credits and training for USAR Soldiers.  In pertinent part, it provides that an annual Statement of Retirement Points will be prepared for all Soldiers regardless of the number of points awarded.  The purpose of the statement is to give a permanent record of the total retirement points a Soldier earns during a retirement year; to tell the Soldier whether he/she earned sufficient points to be credited with a qualifying period for retired pay or for retention in an active status; and to give the Soldier an opportunity to request correction of errors in the statement.

9.  Sections 12731 through 12740 of Title 10, U.S. Code, authorize retired pay for Reserve component military service.  Under this law, a Reserve Component Soldier must complete a minimum of 20 qualifying years of service to be eligible for retired pay at age 60.  The term “good years” is an unofficial term used to mean years in which 50 or more retirement points are earned during each year and which count as qualifying years of service for retirement benefits at age 60.

DISCUSSION AND CONCLUSIONS:

1.  The available evidence indicates that while the applicant completed approximately 28 years of service for basic pay purposes he was credited with completing only 18 years and 4 months of qualifying service for retired pay at age 60.  This was due in part to him not earning at least 50 retirement points during a significant number of years.

2.  The applicant contends that he was not credited with service he performed during the period 12 May 1974 to 27 September 1979.  However, his DA Form 20 shows he was assigned to the 402nd Personnel Service Company from 14 May 1974 until he was discharged on 5 August 1975.  There is no available evidence that he served in a military status during the period 6 August 1975 to 27 September 1979.  As such, he is not entitled to any retirement point credit for this period of time. 

3.  The HRC provided the applicant an ARPC Form 249-2-E, dated 2 November 2007, and advised him that he did not have sufficient qualifying service to meet the minimum 20 years of qualifying service to be eligible for retired pay at age 60.  

4.  There are no provisions for crediting service that has not been performed.  The applicant should have received annual retirement point statements and been aware of the number of qualifying years that he had completed for retirement pay long before he was transferred to the Retired Reserve.

5.  The computation of retirement points credit is an administrative action performed by HRC, St. Louis.  The ABCMR requires the same documentation to verify retirement point credit as does HRC, St. Louis.  If the information on the applicant’s ARPC Form 249-2-E is incorrect or incomplete the applicant should provide HRC - St. Louis with documentation to verify his correct number of creditable retirement points. 

6.  In order to justify correction of a military record the applicant must show or it must otherwise satisfactorily appear that the record is in error or unjust.  The applicant did not submit substantive evidence that would satisfy this requirement.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___X____  ___X___  ___X____  DENY APPLICATION











BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.



      _______ _ X  _______   ___
               CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.

ABCMR Record of Proceedings (cont)                                         AR20090004629



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ABCMR Record of Proceedings (cont)                                         AR20090004629



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